Foreign Relations of the United States, 1948, The Near East, South Asia, and Africa, Volume V, Part 1

761.91/2–648

Memorandum by the Legal Adviser (Gross) to the Chief of the Division of Greek, Turkish, and Iranian Affairs (Jernegan)¹

[Washington,] February 25, 1948.

Subject: Consistency of Certain Articles of the Soviet-Iranian Treaty of February 26, 1921 with the Charter of the United Nations.

Recommendations

The exact language of Articles V and VI of the treaty of February 26, 1921 between the Russian Socialist Federated Soviet Republic (Soviet Union, successor) and Persia (Iran), as explained by the Russian (Soviet) note of December 12, 1921 is not, in the abstract, certainly inconsistent with the Charter of the United Nations.

In the concrete, the action to be reviewed in a case might produce arguments for inconsistency; but an actual case is undesirable.

The Department should take the position that, in the absence of mutual agreement between Iran and the Soviet Union that Articles V and VI of the treaty of February 26, 1921 are no longer applicable, they are to be

(1) interpreted in consonance with the terms of the treaty of security and neutrality of October 1, 1927 and the convention defining aggression, of July 3, 1933 and

(2) applied only in a manner consistent with the Charter of the United Nations.

Position of Parties in 1921

The provisions of Articles V and VI of the treaty of February 26, 1921 took form from circumstances which no longer exist.

In 1921, Persia was still uncertain whether the United Kingdom’s notice of May 13, 1918 that the Russo-British sphere of influence convention of August 31, 1907 (100 British and Foreign State Papers, 555) was in suspense would be confirmed by action as thorough-going as the Russian Socialist Federated Soviet Republic was taking in the treaty of February 26, 1921. Language concerning attempts of third countries “by means of armed intervention to realize a rapacious policy on the territory of Persia” evidently satisfied its sense of independence at the time.

The Russian Bolsheviks, on the other hand, were fearful of intervention across Persia or from Persian territory, and in the previous May there had actually been an incident involving Denikin’s forces at Enzeli. The Bolsheviki had not yet consolidated their authority within Russia, where the application of the principle of “self-determination” allowed them to disregard for the time outlying potential dissident areas while they were reducing forces in positive opposition to them. Externally, the Bolshevik regime was not recognized by other governments, which were still suspected of seeking to intervene against it; and several groups of emigres were active abroad in seeking ways to bother or overthrow the Bolsheviki. Lenin’s technique in treaties was to subscribe to generous propositions with a view to acquiring support and to embarrassing the established relations of non-communist states. Articles V and VI of the treaty of 1921 clearly reflect these elements of Bolshevik policy.

The particular preoccupations of the Bolsheviki were expressed in the limiting explanation made to the Persian Government on December 12, 1921, which stated that

“Articles V and VI are intended to apply only to cases in which preparations have been made for a considerable armed attack upon Russia or the Soviet Republics allied to her, by the partisans of the regime which has been overthrown or by its supporters among those foreign powers which are in a position to assist the enemies of the Workers’ and Peasants’ Republics and at the same time to possess themselves, by force or by underhand methods, of part of the Persian territory, thereby establishing a base of operations for any attacks—made either directly or through the counter-revolutionary forces—which they might meditate against Russia or the Soviet Republics allied to her.”

Alternatives for Iran

A detailed examination of the literal terms of Articles V and VI of the 1921 treaty, as reflected, repeated or modified by the treaty of 1927, indicates that a claim of conflict or inconsistency with the Charter would be very difficult to substantiate on purely hypothetical grounds. The language is loose, but on its face is not repugnant to the purposes and principles of the Charter. It may be doubted, if the question of mere interpretation of the articles were made an issue, whether any organ of the United Nations would accept jurisdiction of the matter.

The Government of Iran evidently feels that the Soviet Union is likely to make extreme demands upon it on the basis of the two articles in question and desires to avoid the constraint that would occur in that event. Any attempt on the part of the Soviet Union to frame a case based on the loose language of 1921 would undoubtedly afford a basis for appealing a dispute or situation to the United Nations. Any action taken under that language would afford even better a basis for appeal. It may be assumed that Iran desires to avoid a controversial case.

Iran seeks a method to render Articles V and VI of the treaty of 1921 inoperative. The direct approach to that objective would be to propose negotiations with the Soviet Union to annul those articles. A counterproposal would undoubtedly be made to reopen the territorial and concessionary matters determined by other articles of the treaty. The success of such a negotiation would be problematical.

If that approach is not adopted, a reexamination of the net mutual obligations maintaining between Iran and the Soviet Union would represent an orderly method of clarifying relations. The treaty of February 26, 1921, the treaty of security and neutrality of October 1, 1927 and the convention defining aggression of July 3, 1933 cover the same ground; and it would be a natural move to review them with a view to consolidating their obligations. Such a negotiation would necessarily be under the regime of the Charter and even its proposal would be a deterrent to misuse of the loose terms of Articles V and VI of the treaty of 1921.

1. Presumably, in response to Mr. Jernegan’s memorandum of February 6 to Mr. Gross in which the former, stated that “GTI would like, if possible, a definitive Departmental view of the consistency of the Soviet-Iranian Treaty of February 26, 1921, and more especially Articles 5 and 6, with the Charter of the United Nations. Such a view is especially desirable because of our understanding that the Iranian Government may take the matter before the United Nations as a result of the Soviet note of January 31, 1948.”

   The question of the validity of the 1921 treaty had been raised in a memorandum of February 3 by Harry N. Howard, Adviser in the Division of Greek, Turkish, and Iranian Affairs, to Mr. Jernegan. Mr. Howard had concluded that “In the absence of a specific act of renunciation of the 1921 treaty it must be assumed that it still continues in force.” (761.91/2–348)